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As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence. I guess that one reason is that it takes years of litigation for employers to “get it”. Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence. Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare. Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace.

What are some of the consequences of workplace violence in a workplace? Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure. In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace. But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask. Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees. Specifically, under OSHA employers must provide a place of employment “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”.
But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize.

First there are the negligent hiring theories of liability. What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions. By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again. What kind of damages are we talking about in these cases? Damages that can be in the millions. One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages. This makes it very appealing as a claim for many plaintiff’s attorneys.

Then there are the negligent retention theories. This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him. Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent.

Either theory can lead to liability for employers. For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again. Honeywell hired him. The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence. Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker. After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house. The family of the victim sued Honeywell claiming both negligent hiring and negligent retention. The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees. However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door. She had complained to the company and they had done nothing. By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable.

In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application. This employee had raped another employee. The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others. Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background. The employer had failed to do a background check on this employee.

What is the lesson for employers? In my mind it is simple, training. Training your managers and HR professionals to understand everything they need to know to prevent workplace violence. Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence. They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace.

Instances of workplace violence clearly are occurring more and more frequently. Since the beginning of 2010 there have already been two serious incidents of workplace violence. First there was the recent instance of workplace violence in St. Louis, Missouri on January 7, 2010 that left 4 dead including the shooter, Timothy Hendron. Apparently Mr. Hendron was a disgruntled assembly-line employee upset about the high cost of his retirement benefits. He worked at ABB Group, a transformer manufacturing plant in St. Louis. He was so upset that he apparently had instituted a lawsuit against his company. Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant carrying an assault rifle and handgun and started shooting. His actions left 4 dead including himself. Witnesses described the scene as utter chaos.

Then there was the instance in which a former employee on January 12, 2010 returned to his former workplace, a truck rental company, and opened fire, killing 3. Five others were also injured in this second instance of workplace violence in 2010. Although we can never be ready for such instances of violence, I still find myself wondering if such incidents could not have been prevented by simple training and preparation that these employers might have done that could have saved these lives. Were there missed warning signs by those who managed and worked with these employees?

Missed warning signs has emerged as a major factor in the violence that occurred at the Fort Hood shooting massacre in November 2009. The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report. Warning signs that if paid attention to could have possibly prevented the horrific instance of violence that took place in November at Fort Hood. Warning signs that properly trained managers might have noticed and acted on. In fact, the Army Report recommended severe reprimands for Hasan’s managers who should have noticed these warning signs and yet failed to act.

What lesson does all of this provide for employers? I think the message is simple and clear. Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure. What type of prevention? First and foremost, employers should have a well-drafted workplace violence policy. Next, they need to provide training as discussed above both on their workplace violence policy as well as on workplace violence in general. Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence. It shows that the employer recognized that there could be a problem and took affirmative steps to prevent such a problem. Employers should also ensure that they thoroughly check references for all candidates including prior criminal convictions, driving records and any other relevant information. They also need to ensure that they act promptly and impose discipline, up to and including termination if necessary, when an employee has evidenced violent tendencies on the job so that they can avoid any claims of negligent retention.

Clearly, this is where employers need to focus their training efforts in the coming months. Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence can help you prevent and be better prepared if violence should arise in your workplace.

Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLChttp://www.hrlearningcenter.com.(JavaScript must be enabled to view this email address)